Insurance Company and Your Injury
In the twenty five years since we began our practice, one constant that we hear quite often from many of our injury victim clients are worries about “Pre-existing conditions.”
The style and syntax of the worries vary from person to person, but if we were to average them out into one sentence it would be this:
“The insurance company says that they won’t pay for the needed treatment because they say that the reason the injury was so bad was because of a pre-existing condition.”
If that seems a little hard to follow, here is a more concrete example.
Mr. X is driving down 395 at fifty miles an hour. A car in the lane to his right suddenly swerves into his lane without signaling. Mr. X’s car is sideswiped and is sent careening into the highway divider. Mr. X suffers a dislocated shoulder when his body slams up against the seatbelt.
Mr. X already has a particularly weak shoulder due to the fact that he used to be on the wrestling team in high school and suffered from a torn rotator cuff. Because of this previous damage, it will take surgery and physical therapy in order to get Mr. X’s shoulder back to normal.
The insurance company of the driver that hit Mr. X tells him that they will only pay for a pre-determined amount, which is usually an “average” of what they think a similar injury would cost. As far as they are concerned, the costs of the extra surgery and the physical therapy are not their problem, because these conditions were “pre-existing,” or, Mr. X had these problems before the accident occurred.
This is what insurance companies all over the nation tell Mr. X, or you, or your cousin, or thousands of other people who get hurt a little worse than insurance companies find financially convenient.
But while they might tell you this, they absolutely will not tell your lawyers the same thing. This is because they know that any first year law student could point out that they are going directly against one of the oldest tort precedents in the book.
Way back in 1889, a kid named Jonathan Vosburg was sitting at his desk in his classroom in Waukesha, Wisconsin. A boy named Hiriam Putney was sitting across the aisle from him. As a joke, Putney lightly kicked Vosburg in shin, just below the knee. It wasn’t a serious kick. It was just a light tap. According to testimony, Vosburg claimed that he didn’t even feel it happen initially.
But three days later, Jonathan Vosburg was delirious, vomiting and in severe pain. After six days, he had to have an operation, where it was determined that he would never have the use of his leg again. It turns out that Vosburg had already suffered a leg injury during a sledding accident earlier that year, and when Putney kicked him in the leg, it made the injury even worse.
Vosburg sued Putney for assault and battery, and the case went all the way to the Wisconsin Supreme Court before Vosburg was awarded $2,500. What is important to note here is that Putney’s attorneys essentially argued that it was ludicrous for their client to be held responsible for all of the damages when he barely touched him. It was, after all, just a little kick. And how was he supposed to know that Vosburg’s leg was already injured?
To which the Wisconsin Supreme Court replied, “What were you doing kicking him in the leg in the first place?” If Putney had mastered his impulse to kick Vosburg, the injury might have gone on and healed perfectly. Or maybe Vosburg would have injured it in some other way, and Putney could have lived out the rest of his life without being a legal footnote. But Putney did kick Vosburg, and Vosburg lost the use of his leg.
The ruling on Vosburg v. Putney became what is now known as the “Eggshell Skull Rule,” which means that just because the victim is more susceptible to injury does not mean that the person responsible for the injury is any less responsible. So this means that it doesn’t matter if your pre-existing condition is that you were made of glass. If you get into an accident and the insurance company involved says that a “pre-existing condition” frees them from any obligations to you, they are not doing the right thing.
You might be wondering why an insurance company would tell you this, and the reason is that insurance companies routinely tell you things that aren’t true. It’s not that theyhaven’t heard of the “Eggshell Doctrine.” They most assuredly have. It’s just that they are pretty sure that you haven’t heard of it. And considering that most of you have never been a first year law student, the odds are in their favor.
This behavior has a tendency to change when you bring in your own legal counsel. To that end, it is important to get in touch with an attorney any time you get into an accident which results in you being injured. In many cases, the law is on your side, even if the insurance company is not.
If you or a loved one has been injured in an accident, contact the law offices of Greenberg and Bederman for a free legal consultation today. To learn more about personal injury issues, read personal injury, or watch our personal injury video.
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